The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Morrison:

I have received your letter of August 28, as well as the
materials related to it. You have sought my views concerning your
right to gain access to a document prepared by the Dobbs Ferry
Village Attorney apparently addressed to the Board of Trustees
pertaining to alleged conflicts of interest. In addition, you
asked that I comment with respect to the possibility that there may
be a conflict of interest.

In this regard, the Committee on Open Government is authorized
to provide advice and opinions concerning rights of access to
government records. The Committee has neither the jurisdiction nor
the expertise to offer guidance or commentary relative to conflicts
of interest or ethics issues. Consequently, the following remarks
will be limited to the issue of rights of access to the record
prepared by the Village Attorney.

As a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of
an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law. While I am
unfamiliar with the contents of the record in question, both of the
grounds for denial cited by the Village Attorney are pertinent to
an analysis of rights of access.

The first ground for denial, §87(2)(a), pertains to records
that are "specifically exempted from disclosure by state or federal
statute." For more than a century, the courts have found that
legal advice given by a municipal attorney to his or her clients,
municipal officials, is privileged when it is prepared in
conjunction with an attorney-client relationship [see e.d., People
ex rel. Updyke v. Gilon, 9 NYS 243, 244 (1889); Pennock v. Lane,
231 NYS 2d 897, 898, (1962); Bernkrant v. City Rent and
Rehabilitation Administration, 242 NYS 2d 752 (1963), aff'd 17 App.
Div. 2d 392]. As such, I believe that a municipal attorney may
engage in a privileged relationship with his client and that
records prepared in conjunction with an attorney-client
relationship are considered privileged under §4503 of the Civil
Practice Law and Rules. Further, since the enactment of the
Freedom of Information Law, it has been found that records may be
withheld when the privilege can appropriately be asserted when the
attorney-client privilege is read in conjunction with §87(2)(a)
of
the Law [see e.g., Mid-Boro Medical Group v. New York City
Department of Finance, Sup. Ct., Bronx Cty., NYLJ, December 7,
1979; Steele v. NYS Department of Health, 464 NY 2d 925 (1983)].
Similarly, the work product of an attorney may be confidential
under §3101 of the Civil Practice Law and Rules.

In a discussion of the parameters of the attorney-client
relationship and the conditions precedent to its initiation, it has
been held that:

"In general, 'the privilege applies only if
(1) the asserted holder of the privilege is or
sought to become a client; (2) the person to
whom the communication was made (a) is a
member of the bar of a court, or his
subordinate and (b) in connection with this
communication relates to a fact of which the
attorney was informed (a) by his client (b)
without the presence of strangers (c) for the
purpose of securing primarily either (i) an
opinion on law or (ii) legal services (iii)
assistance in some legal proceeding, and not
(d) for the purpose of committing a crime or
tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client'"
[People v. Belge, 59 AD 2d 307, 399 NYS 2d
539, 540 (1977)].

Based on the foregoing, assuming that the privilege has not been
waived, and that records consist of legal advice or opinion
provided by counsel to the client, such records would be
confidential pursuant to §4503 of the Civil Practice Law and Rules
and, therefore, exempted from disclosure under §87(2)(a) of the
Freedom of Information Law.

The other ground for denial of potential significance,
§87(2)(g), permits an agency to withhold records that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld. It would appear that the record in question
consists of an expression of opinion. If that is so, it could be
withheld under §87(2)(g).

I hope that the foregoing serves to clarify your understanding
of the matter and that I have been of assistance.